Monday, February 1, 2016

How Well Do Families Understand Updated Wage & Hour Rules for "Home Care"?

Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?"  For many years, I would get a blank stare or, perhaps, "what exactly is elder law?"  Now, more frequently the response is "do you have time for a quick question?"  (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....") 

I'm hearing more questions about home care workers.  One frequent question is about overtime pay, and the type of employment definitely matters.  The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.  

Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight.  Family members will tell me "we just want someone there in case something happens."  That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services.  There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.  

In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation.  See Home Care Association of America v. Weil.  Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.  

As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection."   "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)  

DOL provides this example:

Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.

For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city! 

February 1, 2016 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care | Permalink | Comments (0)

Wednesday, January 20, 2016

Teaching an Elder Law Seminar This Semester?

Are you teaching an elder law this semester?  If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."  

The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan.  They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!

January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, January 6, 2016

Elder Abuse Laws: Are They Merely Scarecrow or White Hat Laws?

When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law.  Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys.  One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly."  C.R.S.A. Section 6-1-112 provides that:

"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."

In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.

Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law. 

January 6, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, December 17, 2015

Pennsylvania Issues Post-Zahner Operations Memo on "Evaluating Non-Qualified Annuities"

Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period.   The Ops Memo #15-11--01, issued November 16, 2015, provides in part:

Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy.  If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services. 

 

Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed.  Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.

It will be interesting to see "what happens next" in the world of Medicaid planning.  My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.

December 17, 2015 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, December 10, 2015

Court Rules Charter School Founder "Incompetent to Stand Trial" on Fraud Because of Alzheimer's/Dementia

In an extraordinarily detailed consideration of expert reports and testimony, the United States District Court for the Eastern District of Pennsylvania ruled on November 23, 2015 that a high-profile criminal defendant, Dorothy June Brown, was unable to stand for retrial on fraud charges, following her diagnosis of dementia of an Alzheimer's type.  See United States v. Brown, 2015 WL 748490 (E.D. Pa. 2016).

Ms. Brown, age 78 at the time of the ruling, was accused in 2013 of multiple counts of federal wire fraud, conspiracy to obstruct justice, obstruction of justice and witness tampering, arising from her role in founding and operating two charter schools, with the alleged fraud totaling more than $6 million from federal funding sources.  The charges were big news, with coverage often depicting Brown, a "career educator," as blond and fashionably dressed, and noting that she was married to a prominent attorney.

Continue reading

December 10, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Federal Cases | Permalink | Comments (0)

Wednesday, October 14, 2015

DOJ Settlement vs. CCRC

The Department of Justice announced a $255,000 settlement vs. a CCRC.  United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community in Lincolnshire, Illinois explains a proposed settlement (the settlement has to be approved by the court).  The press release explains that this settlement resolves "allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois..."

The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability.  Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.

As part of the settlement, the CCRC "will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy.  Additionally ... the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country."

The complaint and consent order are available for download here.

October 14, 2015 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Housing | Permalink | Comments (0)

Monday, October 5, 2015

Webinar on October 6: The "A to Zahner" on Medicaid Annuities

Sorry for the short notice, but on Tuesday, October 6, 2015 from noon to 1 p.m. (Eastern time), the Pennsylvania Bar Institute is hosting a very timely (and cleverly titled) webinar, focusing on the impact of the Third Circuit's recent decision in Zahner on Medicaid planning generally and specifically on the sue of annuities. 

Here is a link to PBI's details on "The A to Zahner on Medicaid Annuities," including how to register.

October 5, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicaid, Property Management, Webinars | Permalink

Thursday, September 3, 2015

Third Circuit Rules Medicaid Applicants' Short-Term Annuities Are Not "Resources" Preventing Eligibility

In a long awaited decision on two consolidated cases analyzing coverage for nursing home care, the Third Circuit ruled that "short-term annuities" purchased by the applicants cannot be treated by the state as "available resources" that would delay or prevent Medicaid eligibility.  The 2 to 1 decision by the court in Zahner v. Secretary Pennsylvania Department of Human Services was published September 2, 2015, reversing the decision (linked here) of the Western District of Pennsylvania in January 2014.

The opinion arises out of (1) an almost $85k annuity payable in equal monthly installments of $6,100 for 14 months, that would be used to pay Donna Claypoole's nursing home care "during the period of Medicaid ineligibility that resulted from her large gifts to family members"; and (2) a $53k annuity purchased by Connie Sanner, that would pay $4,499 per month for 12 months, again to cover an ineligibility period created by a large gift to her children. 

The Pennsylvania Department of Human Services (DHS) argued that the transactions were "shams" intended "only to shield resources from the calculation of Medicaid eligibility."  However, the majority of the Third Circuit analyzed the transactions under federal law's "four-part test for determining whether an annuity is included within the safe harbor and thus not counted as a resource," concluding:

Clearly, if Congress intended to limit the safe harbor to annuities lasing two or more years, it would have been the height of simplicity to say so.  We will not judicially amend Transmittal 64 by adding that requirement to the requirements Congress established for safe harbor treatment.  Therefore, Claypoole's and Sanner's 14-and 12-month contracts with ELCO are for a term of years as is required by Transmittal 64.

Further, on the issue of "actuarial soundness," the court ruled:

 [W]e conclude that any attempt to fashion a rule that would create some minimum ratio between duration of annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations.  It would be an additional requirement to those that Congress has already prescribed and result in very practical difficulties that can best be addressed by policy choices made by elected representatives and their appointees.

The her short dissent, Judge Marjorie Rendell explained she would have affirmed the lower court's ruling in favor of DHS on the "grounds that the annuities ... were not purchased for an investment purpose, but, rather, were purchased in order to qualify for benefits."  In addition, she accepted DHS' argument the annuities were not actuarially sound.

Continue reading

September 3, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 28, 2015

Medicaid Eligibility: Ohio Supreme Court Addresses Effect of Post-Admission, Pre-Eligibility Transfer of Home

One year and six days after hearing oral argument in Estate of Atkinson v. Ohio Department of Job & Family Services, a divided Ohio Supreme Court ruled in favor of the State in a Medicaid eligibility case involving transfer of the community home.  The majority, in a 4-3 vote, ruled that "federal and state Medicaid law do not permit unlimited transfers of assets from an institutional spouse to a community spouse after the CSRA (Community Spouse Resource Allowance) has been set." However, the court also remanded the case to the lower court for recalculation of the penalty period under narrow, specific provisions of state and federal law.

Attorneys representing families in "Medicaid planning" scenarios will be disappointed in the ruling, because it rejected "exempt asset" and "timing" arguments that would have permitted some greater sheltering of assets after the ill spouse's admission to the nursing home. 

At the same time, the complex reasoning and specific facts (involving transfer of the family home out of the married couple's "revocable trust" to the community spouse), will likely create additional business for elder law specialists, especially as the majority distinguished the 2013 federal appellate court ruling in Hughes v. McCarthy, that permitted use of spousal transfers using "annuities."   

The dissent was strongly worded:

It is clear that the law treats the marital home very carefully to prevent spousal impoverishment at the end of life. And that is the public policy we should be embracing. Based on the plain language of the federal statutes and the Ohio Administrative Code, as well as the holding of the United States Court of Appeals for the Sixth Circuit in Hughes v. McCarthy, 734 F.3d 473, I would hold that the transfer of the home between spouses prior to Medicaid eligibility being established is not an improper transfer and is not subject to the CSRA cap.

To view the oral argument of the case before the Ohio Supreme Court, see here. 

August 28, 2015 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (0)

Wednesday, August 26, 2015

LegalZoom Touts "Legal Advice"

Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents.  LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies. 

Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning.  Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice."  Here's a link to one recent example.   

The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following: 

"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com." 

Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state.  The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade CommissionLegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers. 

August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 18, 2015

Federal Court Applies "Doctrine of Reasonable Expectations" to Long-Term Care Insurance Policy

An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy.   The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California.   UPDATE: link to Order dated August 14, 2015. 

In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years.  Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE).  With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy.  The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.  

Insurers understandably prefer not to pay claims if they can avoid doing so.  In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit." 

On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.

Continue reading

August 18, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 11, 2015

Private Law Firms Pursuing State Suits Against Nursing Homes, Hired by AGs

Avenging angels or unholy alliance? A lawsuit filed by the New Mexico Attorney General in December 2014 against Preferred Care Partners Management Group, a large, privately held management company operating nursing homes in New Mexico and nationally, raises interesting questions about whether AGs should be teaming with private lawyers to pursue cases of alleged malpractice, abuse or fraud affecting consumers.  The  Plano, Texas-based defendant asserts that "lobbying" of state attorney generals by private firms to pursue questionable claims is improper, pointing to campaign contributions paid by law firms or individual lawyers, as well as contingent fee arrangements that defendants argue reduce the States' accountability.

The current New Mexico AG has defended his state's relationship with the Washington D.C. law firm of Cohen Milstein.  According to the Santa Fe New Mexican:

Current Attorney General Hector Balderas blasted back at the company through a spokesman. “Bilking taxpayers for inadequate care and denying helpless and vulnerable residents basic services will not be tolerated,” he said. “Our office will continue to aggressively protect New Mexico’s taxpayers and our most vulnerable populations.”

Currently, the New Mexico case is in federal court, following the defendant's removal from the original filing in state court.   The law suit -- and the issue of private/public partnerships in pursuing claims on behalf of consumers and/or taxpayers --  is generating a lot of attention in the business world. Recent coverage includes linked news stories by the New York Times, the Albuquerque Journal, and McKnight's LTC News.

August 11, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Friday, July 17, 2015

9th Circuit Sets Aside Case Precedent on Whistleblowers Under False Claims Act

On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement.  From its introduction to the ruling in consolidated civil qui tam suits:

If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.

According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements. 

Additional history -- and predicting clarifications --  about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule."   For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."

July 17, 2015 in Crimes, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Thursday, July 16, 2015

Highlights from Upcoming Pennsylvania Elder Law Institute on July 23 & 24

Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg. 

Highlights include:

  • "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
  • How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
  • Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
  • LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
  • Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
  • Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
  • A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)

There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).  

I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!    

July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Wednesday, July 8, 2015

July 15: ABA Hosts Webinar on What Every Attorney Needs to Know about SSI

Two of my favorite bright lawyers (with great hearts, too) are Kate Lang from Justice in Aging in Washington D.C. and John Whitelaw from Community Legal Services of Philadelphia.  Kate and John are the speakers at an upcoming ABA hosted webinar on Supplemental Security Income (SSI): What Every Attorney Needs to Know.

Time:  1 to 2:30 p.m. (Eastern Time)

Date: Wednesday, July 15, 2015

Here are other details about registration and cost. 

July 8, 2015 in Federal Cases, Federal Statutes/Regulations, Programs/CLEs, Social Security, Webinars | Permalink | Comments (0)

Friday, June 26, 2015

5-4: US Supreme Court Holds States Must License and Recognize Same Sex Marriages

Relying on the 14th Amendment, in a 5-4 ruling, the U.S. Supreme Court ruled that states must license marriages --  and recognize them as valid marriages -- for same sex couples.  Justice Kennedy wrote the opinion for the majority; Chief Justice Roberts authored a dissent.

Here's a link to the Supreme Court's full opinion in Obergefell v. Hodges, released today, June 26, 2015.  Interestingly, June 26 has also hosted past landmark rulings affecting marriage rights.

UPDATE:  in watching the evening news tonight, I was struck by the numbers of couples with grey hair celebrating the Supreme Court's decision. For the moving story of Jim Obergefell, the lead plaintiff, see this People profile.  For commentary on how the most recent Supreme Court ruling, on top of the Windsor case, affects "older" same sex couples, see this blog entry from Justice in Aging. 

June 26, 2015 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (1)

Thursday, June 25, 2015

King v. Burwell: USSC Rules Tax Credits Apply to Federal Exchanges

Recognizing that "tax credits" were a key component of health care reform enacted by Congress, six justices of the Supreme Court, led by Chief Justice Roberts, upheld application of the credits to federal exchanges, despite the statute's moments of "inartful drafting." Here is the final paragraph of the majority's surprisingly decisive opinion, issued on June 25, 2015: 

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

Here is the link to the Supreme Court's full opinion, including Justice Scalia's wrathful dissent. 

June 25, 2015 in Current Affairs, Ethical Issues, Federal Cases, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, June 16, 2015

Siblings' Dispute Over Filial Support Finds Way to Bankruptcy Court

Last fall, I blogged about In re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability.  The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother. 

In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts." 

The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd (Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members.  This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault.  For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).

UPDATE October 2015:   On June 30 2015,  William Skinner filed an appeal to the Third Circuit. As of early October, briefing is underway.

June 16, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Saturday, June 13, 2015

Forty-nine years ago...

The New York Times' "On this Day" squib reminded us today: 

"On June 13, 1966, the Supreme Court issued its landmark Miranda vs. Arizona decision, ruling that criminal suspects must be informed of their constitutional rights prior to questioning by police."

That triggered memories, as the day the landmark decision first became known in Arizona, the father of one of my friends offered everyone in the neighborhood a glass of champagne, even us kids.  At the time I did not fully appreciate the reason.  It was only years later that I put it together that the celebrant was John P. Flynn, the lawyer who successfully argued the Miranda case before the U.S. Supreme Court.

Even more years later, in the 2000 Supreme Court decision of Dickerson v. U.S., another man from that same Phoenix, Arizona neighborhood would confirm the importance of "Miranda warnings" as an accepted mainstay of protection for individuals suspected of crimes.  Chief Justice William H. Rehnquist did not share the legal or political philosophies that generated the original ruling, but he could be persuaded to respect the role of stare decisis. I have often been bemused by the fact that John Flynn, a bold advocate and life-long Democrat,  had once celebrated his biggest victory with the children of the neighborhood, including the children of a future Supreme Court Justice, well known for his conservatism.  Phoenix, especially the legal community, was a very small town in those days.

My trip down memory lane took me to a colorful account of John P. Flynn's life.  It is the story of a creative and talented lawyer, from an era much more tolerant of personal flaws. Read "Remembering John Flynn" by his one-time law partner Tom Galbraith.

June 13, 2015 in Crimes, Ethical Issues, Federal Cases, Other | Permalink | Comments (0)

Monday, June 8, 2015

2d Circuit Addresses Nursing Home Collection Practices in Cross-Border Dispute

In Eades v. Kennedy PC Law Offices, decided June 4, 2015, the Second Circuit ruled that a federal court in New York has personal jurisdiction to address alleged unfair debt collection practices of a Pennsylvania law firm in seeking to collect unpaid nursing home fees totaling $8,000.  The plaintiffs, New York residents -- the husband and adult daughter of a woman in a Pennsylvania nursing home -- challenged statements in correspondence and phone communications allegedly made by the Pennsylvania law firm.  The claims against the daughter were based on Pennsylvania's filial support law.

As reported on this Blog in December 2013, the United States District Court for the Western District of New York dismissed the suit, finding no personal jurisdiction and further rejecting application of the federal Fair Debt Collection Practices Act (FDCPA). The Second Circuit's ruling concludes, however, that the law firm's "three purposeful contacts with New York," of mailing a debt collection notice to the New York family members, engaging in a debt collection phone call with the daughter, and mailing a summons and complaint to both the daughter and the nursing home resident's husband, are enough to establish personal jurisdiction under New York's long-arm statute.  Further, the defendant law firm had not shown that exercise of such jurisdiction was unreasonable.

On the questions raised by the FDCPA claims, the Second Circuit rejected several key arguments by the plaintiffs, concluding that Pennsylvania's filial support law is not preempted by the Nursing Home Reform Act's prohibition on nursing homes requiring third party guarantees of payment:

Continue reading

June 8, 2015 in Consumer Information, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)